Fourth Amendment Rights for Unauthorized Drivers of Rental Cars

Over 115 million car rentals take place
annually across the United States.[1] Car rental agencies have
branch offices in nearly every city and the top agencies such as Enterprise,
Hertz, and Avis generate billions of dollars in revenue annually.[2] On January 9, 2018, the
Supreme Court of the United States heard arguments in a case, Byrd v. United States, which lies
at the intersection of cars and the Constitution.

The case of Terrence Byrd focused on the
question of whether the Fourth Amendment applies to the search of a rental car
operated with the renter’s permission but without the driver being listed as an
authorized driver on the rental agreement.[3]

In the summer of 2014, Pennsylvania
state troopers stopped a Ford Fusion driven by Terrence Byrd for a minor
traffic violation. According to police reports, he was driving in the left lane
of Interstate 81 outside of Harrisburg, while state law only permits drivers to
use the left lane for passing.[4] Byrd seemed “extremely
nervous” after he was pulled over. When asked, he provided officers his
driver’s license as well as the rental car documents. Officers reviewed rental
agreement and noticed that Byrd’s name was not on there. Instead, the agreement
was under the name of Latasha Reed, Byrd’s girlfriend.[5]

Over the course of the nearly 40-minute
stop, Byrd admitted that he had smoked a marijuana cigarette in the car.[6] Since the rental agreement
didn’t authorize Byrd to drive the vehicle, troopers told him they didn’t need
his consent for a search of the vehicle and proceeded to search it over his
objection. When troopers searched the car’s trunk, they found nearly 2,500 small
bags of heroin, as well as body armor.[7]

A federal grand jury charged Byrd with
one count of possession of heroin with intent to distribute and one count of
possession of body armor by a prohibited person.[8] The district court sentenced
him to ten years in prison.[9]

On appeal, the United States Court of
Appeals for the Third Circuit affirmed Byrd’s conviction and found that the
stop was lawful. It reasoned that “the
sole occupant of a rental vehicle” has no “Fourth Amendment expectation of privacy when that occupant is not named
in the rental agreement,” and so the occupant may not “challenge a search.”[10]

Byrd then appealed this ruling to the
Supreme Court.

The United States Constitution’s Fourth
Amendment provides that the right of the people to “be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures” shall
not be violated.[11]

The Fourth Amendment has been interpreted
to protect people as well as possessions, such as cars, baggage and even phone
conversations in many cases.”[12]

However, an important limitation on the
Fourth Amendment protection is that for the Fourth Amendment to apply, the search
or seizure must be of property or in a location in which the defendant had a
“reasonable expectation of privacy.”

It is well-settled that the owner and
driver of the car has a reasonable expectation of privacy in the car’s interior
and contents.[13]

On the other hand, the Supreme Court has
ruled that a passenger who does not own the car does not have a
reasonable asportation of privacy. In the 1978 Supreme Court case, Rakas v. Illinois, Frank Rakas and
Lonnie King were traveling with two female companions, one of whom was driving,
when they were stopped by police regarding an armed robbery that had taken
place earlier that day.[14] Police searched the car and
discovered a box of shotgun shells in the glove compartment and a sawed-off
shotgun.

The lower court denied Rakas’ motion to
suppress the evidence seized because as a passenger in the car, he lacked
standing to challenge the search’s legality.

On appeal before the Supreme Court, the
defendants argued that they had a reasonable expectation of privacy because
they had permission to be in the car. The Court disagreed.[15] The Court ruled that it
did not matter whether the passengers had the right to be in the car. What
mattered was ownership and control of the space. A passenger that does not own
a car does not have a reasonable expectation of privacy in the car and its
interior.

Given that a passenger does not have a
reasonable expectation of privacy in the interior of the car but that a driver
who owns the car does, the question becomes: what about an unauthorized
driver? A rental car without the name of the driver in the contract is a
manifestation of an unauthorized driver.

The Eighth and Ninth Circuits, as well
as four state supreme courts have held that an unlisted driver has
standing to challenge a search, so long as the renter named in the agreement
permits the unlisted driver to drive the car.[16] On the other hand, the
Third, Fourth, Fifth, and Tenth Circuits, as well as two other state supreme
courts, have held that the unlisted driver does not have standing to challenge
the search of a rental car, because unlisted drivers don’t have an expectation
of privacy.[17]
The Sixth Circuit has taken a middle position, adopting “a totality of the
circumstances” test to consider numerous factors regarding an unauthorized
driver’s use of the rental car to determine if he has standing.[18]

The division of authority subjects an
interstate driver to arbitrary fluctuations in his Fourth Amendment rights.[19] In Whren v. United States, the Court advised that the “search and seizure protections of the Fourth
Amendment” should not “vary from
place to place and from time to time.”[20] To resolve, the conflict,
the Supreme Court has agreed to hear the Byrd
case, in which the issue will be settled under the Fourth Amendment.

The American Civil Liberties Union filed
a brief in support of Byrd, writing that if unauthorized drivers are not
granted privacy rights, there would be a considerable effect on a “broad swath of the population, especially
individuals who have come to depend on rental cars for everyday travel because
they cannot afford to purchase their own vehicles.”[21] As Byrd’s attorneys write
in their brief, the government appears to want “to transform a violation of a car-rental agreement into a rule where
unlisted drivers have no ability to even invoke the Fourth Amendment.”[22] They argue that should
the government prevail, it will have the power to conduct suspicion-less
searches whenever it stops a rental car driven by an unlisted driver for a
routine traffic violation.[23]

The
divide in thinking on this issue manifested itself during the case’s oral
arguments. Chief Justice John Roberts and Justice Samuel Alito seemed most
receptive to the government’s arguments, while Justice Sonia Sotomayor seemed
to side with Byrd. By June 2018, the Supreme Court will settle the current uncertainty
and determine whether an unlisted driver can invoke the Fourth Amendment
against police searches.